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0048e18c
Member

Copyright and content ownership

Hello,

 

I'd appreciate any guidance to ensure both myself and my team use Upwork appropriately.  We're a small local business and have used Upwork successfully for a couple of small design items.  A great first experience.  However, I'm now considering hiring someone (and have actually posted the job) to help me conceptualize a brick and mortar business concept.  I'll need help in areas such as logo / identity as well as storefront design.  In short, I'm a busy business owner and do not want to make a mistep with ownership issues.  I obviously understand the payment part.  The client needs to pay.  But I want to make sure there's nothing more complicated than that.  Completely separate from Upwork, I learned a lesson in that regard when I bought a photo session for some friends who had just had a new baby.  I paid for the session and then they learned that every picture was a charge and their newborn was on the webpage of the photographer's site.  I respect people's work, but don't want to ever assume anything again, so any help here appreciated!  

58 REPLIES 58
prestonhunter
Member

This is not a photography studio.

 

On Upwork, whoever pays owns all the rights. It IS very simple.

 

Default rules specified by Upwork declare this. Only if the client and freelancer agree to a separate contract is there any difference.

I appreciate the info.  I only used the story to illustrate the point.  Hope it was taken that way.

 

Preston where can I get the copyright polcy for my specific work that I paid for on UpWork?

re: "where can I get the copyright policy for my specific work that I paid for on Upwork?"

 

https://www.upwork.com/legal#optional-service-contract-terms

 

This has the salient information, including this paragraph:

 

Screen Shot 2020-12-04 at 10.15.52 AM.png

 

 

kat303
Member

Freelancing is considered a work for hire. Once you're paid, copywrite/ownership transfers to the client and they can do what ever they want to do. Anything else, will have to be discussed and agreed to between the freelancer and client. and you'll need to specify that in your contract. But, I'm not sure if any client would want different terms because they won't own the work they paid for.

No. Freelance is not automatically “work for hire.” However, it does entirely have to do with the contract between the client and freelancer and as to what usage rights are stated in the contract.
kochubei_valeria
Community Manager
Community Manager

Hi Frank,

 

Upwork User Agreement has a few articles dedicated to property rights. Please, see article 8.6

 

 

"Upon Freelancer’s receipt of full payment from Client, the Work Product, including without limitation all Intellectual Property Rights in the Work Product, will be the sole and exclusive property of Client, and Client will be deemed to be the author thereof."

~ Valeria
Upwork

Thank you Valeria and all others very much

how is infringement enforced? If a freelancer in india is now using the website I paid to be built , how would upwork stop that?


Asim S wrote:

how is infringement enforced? If a freelancer in india is now using the website I paid to be built , how would upwork stop that?


 Upwork does not "enforce" or "stop" anything much - that is up to you.

You can report the freelancer, but beyond taking action on the freelancer's account if you can show you fully paid the work under the contract, there isn't so much Upwork can do.

 

Have you discussed it with your freelancer?

 

 

This part of agreement is now in: 

Optional Service Contract Terms
Effective April 20, 2018

 

6.4 OWNERSHIP OF WORK PRODUCT AND INTELLECTUAL PROPERTY
Upon Freelancer’s receipt of full payment from Client, the Work Product (except for any Background Technology), including without limitation all Intellectual Property Rights in the Work Product (except for any Background Technology), will be the sole and exclusive property of Client, and Client will be deemed to be the author thereof. 

How can I make sure Optional User Agreement is also signed by freelancer? I don't see any such option while creating a project.

re: "How can I make sure Optional User Agreement is also signed by freelancer? I don't see any such option while creating a project."

 

Unless you and the freelancer PROACTIVELY do something else, then the "Optional User Agreement" IS IN FORCE when you hire a freelancer.

 

They see a screen requiring them to check a box and agree to it.

 

Upwork's default terms of use are in force when you hire a freelancer and don't decide to use another contract.

 

Don't over-think this.

 

If you're the paying client, then you own the work.

That’s kinda crappy of UpWork to do really. Not very freelancer/creative friendly. 😡
This should always be between the freelancer/artist/designer/illustrator and client, in contract, as to what usage rights are handed over after full payment of services.

Is this updated to 2020? because I can not find this 8.6 user agreement

aocumen
Community Manager
Community Manager

Hi Ingrid, 


We updated the Upwork Terms of Service, and this section can be found in the Optional Service Contract Terms, Section 6 Intellectual Property Rights.


~ Avery
Upwork

Thanks Avery for your Answer.

Can you please explain this IMPORTANT NOTE, because it is not clear for me? If I hire a freelance this year 2020 for a job still valid this contract agreement?  I am confuse, sorry for that 

 

Also I wanted to ask... Is it automatic this contract just by hiring someone on upwork? or do we need to do something extra... 

Thanks

Optional Service Contract Terms
 
IMPORTANT NOTE: These Optional Service Contract Terms are effective May 20, 2018 for all Users who registered before they were posted on April 20, 2018, and effective when posted for everyone else.

re: "If I hire a freelance this year 2020 for a job still valid this contract agreement?"

 

Yes. Still valid.

 

re: "Also I wanted to ask... Is it automatic this contract just by hiring someone on Upwork?"

Yes.

It is automatic.

 

As long as the client and freelancer do not intentionally agree to a different contract, then Upwork's default contract is automatically in force.

 

re: "Do we need to do something extra?"

 

No. You don't need to do anything else.

Thanks so much Preston !!!

Updated 2020 ?

Hi Benjamin,

 

There was a recent update of the Upwork's Terms of Service as you can see in the latest post by Avery. Feel free to follow up on the thread if you have further questions.

 

Thank you.

~ Aleksandar
Upwork

Hi there 🙂 I'm "new" here, I resume my services here after 5 years, I'm impressed by that, I mean, why? Paying for a job doesn't make the client the author of the design, it doesn't make sense and it doesn't seem ethical to me. Why not give the designer the right to say "I did this" (just that) and also allow them the right to add the design to their portfolios? There must be some legal way to attribute those rights to designers without affecting clients' business, profits and interests. 😞 It is really disappointing to me.

Is it possible to create an initiative for Upwork to make a modification to its clauses? that is, how chaotic can it be to modify a regulation to give designers that simple natural right? and specify that those designers will have no rights to future earnings and interest of any kind on the design sold.

Please excuse me if I am being ignorant, but I cannot just ignore the matter, and I am not a lawyer, so I have no knowledge in the matter.

The very thing you mention, if I read correctly, is a right to all
creators. Whether they are a designer, illustrator, artist, musician,
writer, etc. UpWork should acknowledge this! It’s unfortunate they don’t,
however what they can’t control is how you do business with your clients.
That is with an agreement that outlines and states usage rights AND always
requires a credit line of some sort and allow to be used in your portfolio.

UpWork is not on the side of the creative freelancer, let alone custom
valued creatives! And shamelessly entice novices who know nothing about
real world business. They side heavily on the “client” side to gain profit.
And aren’t interested in value services and working relationships.

Of course not all freelancers on UpWork are in the creative industry, nor
all from the United States, which laws are in place to protect the Original
creator (as long as they didn’t cross any copyright).

Anyway, I might have said more than what your where initially asking about.
But I wanted to emphasize the reason behind my agreement to your post.

**Edited for Community Guidelines**

claudiacezy
Member

The Work Product represents the final deliverable or outcome. You need to have a clear agreement about what it constitutes a final deliverable. Specify from the beginning if you want to be sent also the source files, to have ownership over everything that it has been produced. Some designers are reticent to provide all source files, unless agreed prior to being hired, this happens mostly if the job is fixed price. One of the reasons not be provided all source files is because they want to retain ownership over some elements or they don't have full ownership over all elements incorporated in the final design.

Remember: In an hourly contract, all work produced by the freelancer while working on behalf of the client (while being paid by the client) belongs to the client. Automatically.

 

This includes all intermediate files produced by the freelancer. All of these file constitute work product.

 

If a freelancer creates a great design file in Photoshop, and as part of creating that file the freelancer created 5 Adobe Illustrator files... all of these constitute work product. All of these belong automatically to the client.

 

These files, created while working for the client, are never the freelancer's files, and it is not up to the freelancer to decide whether or not to provide these files to the client. They already belong to the client.

Adding to the comments above -

 

Freelancers normally reserve the right to showcase work they are proud of in their portfolios - this includes websites. The smarter ones include this in their profiles and in any 'paperwork' between client and freelancer.

 

For clients with a NDA in force as it applies to website writers, designers (design, art, and graphics) and IT builds: once a site goes live it is considered public domain and the freelancer can showcase it in a portfolio, on websites, etc.

 

Ghost writers and, in some cases, editors are different - esp. as a ghost writer. The actual creator of the project can not, without specific permission, share the work as an example.

 

If you are asking solely about a Business Plan, it is best to lay out the exact terms in advance.

Dear Upwork community, I'm new to Upwork, but I have a long history as an architect & designer, and I was concerned about copyright and content ownership as I'm trying to build-up my own brand that is already there. From what you say here is, as long as I get paid I don't own the design anymore, it's is similar to as if I work within a firm.

But you say here that I still can put my design with my name on it in my portfolio & website, right? Is this written anywhere in the terms & contitions of Upwork? Can I do that legally on Upwork?

 

Thanks

Although it is true that a client owns the work once you have been paid for it, you could possibly come to some sort of agreement with each client, in  that although they own the work, they might not mind naming you as the creator (not the owner) of it. In which case, they probably wouldn't mind your using it as a portfolio piece - but always ask first as some clients do mind. In effect, copyright is when you agree (or grant) full ownership of the work to the person who has paid you, who can then do what they want with the work, without further input or claim from you.

 

An agreement of this sort doesn't work for all clients of course, as some wish to claim authorship as well as ownership. 

Would you be able to describe how this transfer of ownership differs in a fixed price contract? i.e. - are demos/roughs sent to a client (but are not accepted as the final product) also included in transfer of ownership? Or is it only the work product that is deemed to fulfill the job posting requirement?

re: "Would you be able to describe how this transfer of ownership differs in a fixed price contract? i.e. - are demos/roughs sent to a client (but are not accepted as the final product) also included in transfer of ownership? Or is it only the work product that is deemed to fulfill the job posting requirement?"

 

John:

Technically speaking, a fixed-price contract is intended to specify a specific task or deliverable. Each fixed-price milestone should be accompanied by a description of what the freelancer will do and deliver.

 

So technically, NOTHING that is not specified as a deliverable needs to be delivered to the client. You can be nice, as a freelancer, and deliver all kinds of stuff. But the client doesn't have a right to anything outside of what was agreed-to beforehand.


For example, if you have a milestone that says: deliver a mock-up sketch for a book cover, then that's the only thing you need to deliver for that milestone.

 

The client could say: "Didn't you take a bunch of hand-written notes during our conversation about what the book cover should look like?"

 

Freelancer: "Yes."


Client: "Can I have those notes?"

 

Freelancer: "The deliverable was the sketch, not any notes."

 

Now... the freelancer COULD be nice and scan the notes and send them as well. But he doesn't have to.

 

If this was an hourly contract, however, then those notes BELONG TO THE CLIENT. If the freelancer took notes while logging time (or added time manually), then the freelancer wouldn't have the right to refuse providing those notes to the client.

Thanks for the detailed answer - It confirmed what I had believed to be true, but I wanted to get a second opinion on what I had surmised. Thanks!


Preston H wrote:

Remember: In an hourly contract, all work produced by the freelancer while working on behalf of the client (while being paid by the client) belongs to the client. Automatically.

 

This includes all intermediate files produced by the freelancer. All of these file constitute work product.

 

If a freelancer creates a great design file in Photoshop, and as part of creating that file the freelancer created 5 Adobe Illustrator files... all of these constitute work product. All of these belong automatically to the client.

 

These files, created while working for the client, are never the freelancer's files, and it is not up to the freelancer to decide whether or not to provide these files to the client. They already belong to the client.


No, no, no. Hourly or flat rate, it doesn't matter. Many clients do not realize that some file types are illegal for freelancers to hand over. And unless the client is buying the rights to any stock images used, those images are licensed to the freelancer - specific licenses require set parameters about how they can be used. Once out of a freelancers hand, clients may not honor those licenses.

 

From a very good online article about this subject matter:

 

"You cannot legally obtain the fonts from a designer. If you do, both you and the design firm are in violation of the font manufacturer’s end-user license agreement (EULA)"

"You may not be legally allowed to use any custom or stock photography elsewhere or after a certain period of time" (this, depending on the type of license paid for with an image).

 

Client do not automatically have the right to everything used in a project, and this should be discussed beforehand - if native files are part of the contract, I make sure clients are aware of these exceptions.

Yes, I understand licenses and purchases of assets (fonts, images, logos)
from your example.
And yes, if its a work-for-hire agreement. Which in many freelance creative
communities opinion (and The Graphic Artists Guild I might ad) is to be
avoided. And yes, some elements, photos, assets may already be copyrighted
and one should obtain/purchase license use for those. And then there's
logos (which is obviously a little different as its so specific to the
brand that why or how any designer would be able to use it in other ways
aside from the specific client) And on this, I'm not referring in my
previous statement.

However, the original illustration, artwork, and even design, is owned by
the creator automatically in U.S. law and as in ALL RIGHTS RESERVED, unless
in contract between artist and client, to what usage rights are granted or
ALL RIGHTS granted by payment. Such as book illustration, poster,
merchandise, well anything even if it was the clients "idea" or direction.

I'm simply saying, this idea that the client should automatically own
something because they paid for the work (in regards to creative) is NOT
right nor correct.

Will, I completely see what you’re saying here. But say for instance I pay you to design me a product or image for my business. This item is then sold to customers and a competitor sees that it’s doing well, and copies it. As known in the US the person who owns the copyright is the one who must go after the infringer. How do I protect my company from infringement if I have no ownership over the design?


Heather F wrote:
How do I protect my company from infringement if I have no ownership over the design?

Unless you have agreed anything to the contrary with your freelancer, you DO own the design.

I’m not sure if I read that response correctly, but, no the client doesn’t
own anything unless the creative exclusively said you do in the agreement.
This is to protect the creator of their hard earned work and not the
client.

However, UpWork and sites like them; sucker freelancers into the game to be
controlled by the buyers. This makes money for UpWork. It’s just a rat race
to the bottom unfortunately.

Again, still how the contract is agreed on in the beginning of the project.
Say for instance, in your example it’s a product designed to be sold, I
would probably do one of two things in the contract: charge a flat rate
that includes royalities % after so many sales or charge a much higher rate
and sell all usage rights to the client. An then there is also exclusive
rights, which still give the artist a say in the work or at least keep
credit. And in the case of illustrators, this still allows control over
their work and opportunities to make a better living from what they do.

At the same time, the designer/illustrator is also capable to go after the
infringer as well.

In terms of say logo design, it’s just not usual, worth it or makes a lot
of sense to not give all rights to the client. (That’s why unique custom
logo design is not a measly $$ amount like some seem to think on sites like
UpWork.)

The main point is; No it is not automatic and an all circumstances issue
that if ‘you buy it, you own all rights to it’ kind of deal. Make sense?

Will, I totally have been agreeing with you throughout the conversation in this thread. I'm just starting on Upwork as a 3D Modeler and Rendering Artist. I wanted to know is it ok to let people know on my profile that I would like to retain ownership of source files and the ability to use final images for marketing purposes? Just to honestly let people know up front. I'm not sure if people do this or not. Anyone feel free to chime in as well. 

I believe as the creator of the work, you very well should have full rights
to keep the working files.
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